RANBEER SINGH (DEAD) BY L.R.versusSTATE OF U. P. & ORS.

                    [2015]4S.C.R. 37



            RAN BEER SINGH (DEAD) BY L.R.                     A

                             v.
                  STATE OF U. P. & ORS.

             (Criminal Appeal No. 205 of 2009)                B

                     MARCH 27, 2015

            [PINAKI CHANDRA GHOSE AND
                UDAY UMESH LAUT, JJ.)                         c
        Penal Code, 1860- s.302134 - Conviction under-
Of all the accused including respondent co-accused by trial
court - Acquittal of the co-accused by High Court on the
ground that they did not share Intention with the main accused D
to kill the deceased - On appeal held: There is enough
material to infer the common and shared intention of the co-
accused with the main accused - High Court erred in
acquitting the co-accused.
                                                               E
        Allowing the appeal, the Court

       HELD: There is enough material to infer the
common and shared intention of the accused-
respondents with that of the main accused. Although, F
the respondents-accused have taken the plea that they
had not thrown the deceased down to the drain with
intention of killing him but merely assaulting him and the
shooting by the main accused was an independent act.
However, there was no justifiable reason for the 4 G
accused persons to go 100-150 yards inside the field of
the complainant. Second, the fact that they carried a
weapon being 315 bore country-made pistol with them
clearly shows that they had all the wrong intentions.
                                                              H
                            37
38         SUPREME COURT REPORTS              [2015] 4 S.C.R.


A Nowhere in the case of defence has this come out that
  the three accused respondents were not a\1are of the
  fact that the main accused carried the weapon. Also, in
  the exhortation made by the accused persons against
  the complainant, the deceased mentioned about killing
B them. Having made such an exhortation, they threw the
  deceased on the ground. It goes on to show that they
  all shared a common intention and worked in tandem.
  Accused-respondent 'B' is the father of other three
C accused persons; he could have asked the main
  accused to stop short of shooting, but he did not do so.
  The view taken by the High Court is not even a possible
  view. Thus, the High Court is not even a possible view.
  Thus, the High Court erred in acquitting the accused-
D respondents. [Para 11] (42-H; 43-A-E]

           CRIMINAL APPELLATE JURISDICTION : Criminal
     Appeal No. 205 of 2009

        From the Judgment and Order dated 30.04.2008 of the
E High Court of Judicature at Allahabad in Criminal Appeal No.
  1674 of2006

           Manoj Swarup, Lalita Kohli, Abhishek Swarup (for
     Manoj Swarup & Co.) for the Appellants.
F
           Ajay Veer Singh Jain.Ajay Kumar Jain, U. R. Bokaida
     (for Mohd. lrshad Hanif), Rajesh Kumar Maurya, Mukesh
     Verma, Ravi Prakash Mehrotra for the Respondents.

G          The Judgment of the Court was delivered by

         PINAKI CHANDRA GHOSE, J. 1. This is an appeal
  by the Complainant against the impugned judgment and
  order dated 30-04-2008 passed by the High Court of
H Judicature atAllahabad in CriminalAppeal No.1674 of2006.
RANBEER SINGH (DEAD) BY L.R. v. STATE OF U. P. & 39
      ORS. [PINAKI CHANDRA GHOSE, J]

In the impugned judgment the High Court had allowed the A
appeal of three accused persons a j a::quitted t em while
maintaining the conviction of th~ main accused. The present
appeal before l's has been filed by the complainant against
the e:L .;u .:al of the three accused by the High Court. The
Sessions Court after trial had convicted the main accused B
Shyamu under S. 302, IPC along with Section 25 of the Arms
Act while it convicted the other three accused persons, Balbir
Singh, Vinod and Karua (respondents herein) under S. 302,
IPC read with s.34 IPC. The appeal of Shyamu against his C
conviction by the High Court was filed in this Court but was
dismissed, thus, his conviction has attained finality.

        2. The facts of the present case are that Shyamu, Karua
and Vinod are sons of Balbir Singh and Balbir Singh is D
the elder brother of the complainant Ranbeer Singh. The
deceased Pooran Singh was the son of the complainant
Ranbeer Singh. Admittedly, there is pending criminal litigation
between Ranbeer Singh and Balbir Singh, the two brothers.
The pending criminal litigation relates to an incident 13 to 14 E
months prior to the incident in question in present case
wherein Balbir Singh had fired at Ranbeer Singh with
intention of killing him. The pending civil litigation related to
some property between the two brothers. As per the case of
the prosecution, on the date of the incident in the instant case F
i.e. 07-02- 2002, the complainant was irrigating his field along
with his son Pooran Singh (the deceased) while the 7 year
old son of Pooran Singh was sitting on the Mendh nearby.
The four accused persons were irrigating their field, which
was adjoining the field of the complainant, and while they G
were at the tubewell of their field, which is 100-150 yards away
from the tubewell of the complainant's field, at around 4:45
pm, four accused persons came to the complainant making
an exhortation ''Aaj mauke par mil gaye hain. /nhe jaan se H
40         SUPREME COURT REPORTS                    [2015] 4 S.C.R.



A maar do aur maan lo ki mukdmein ka faisla ho gaya aur
     zameen humain mil gayi." (Today, they have met at an
     opportune time. Kill them and treat the litigation as decided
     and we got the land). Thereafter, the present three
     respondents Balbir Singh, Karua and Vinod held Pooran Singh
8    and threw him on the ground and Shyamu made a shot with
     his gun from behind at the Pooran Singh.As this happened,
     the Complainant along with 7 year old grandson An kit, ran away
     to save their life. On hearing the shouts of the complainant,
C    the persons working in the nearby field saw the accused
     persons fleeing from the place of occurrence. The FIR was
     registered on the same day at 6:05 pm by the Complainant.
     During investigation the weapon being country made pistol
     of 315 bore was recovered from the field of the accused on
o    the disclosure statement made by Shyamu.

             3. The prosecution evidence consisted of PW1
     Ranbeer Singh (eye witness), PW2 Ankit (eye witness and
     child witness}, PW3 Dr. S.K. Seth (proved post mortem
E    report), PW4 Constable Saiyed Mohd. Kasim, PW5 S.I.
     Roop Chandra Verma, PW6 Inspector lncharge Narendra
     Kumar Singh and PW? Constable Pradeep Kumar.

           4. The PW1 Ranbeer Singh stated that the accused
F persons out of enmity in light of pending civil and criminal
  litigation and with motive to take revenge, killed his son on
  the fateful day. He testified that on 07. 02.2002 he was irrigating
  his field with tubewell along with his son and grandson Ankit
  was sitting nearby. At the same time, the four accused
G were irrigating their field from a tubewell which was about
  100-150 yards away from the tubewell of complainant. At
  around 4:45 pm, they came and exhorted that "today they are
  alone, hold them and kill them and so we would get our
  farmland also". Then Balbir, Karua and Vinod held Pooran
H
 RAN BEER SINGH (DEAD) BY L. R. v. STATE OF U. P.               41
       & ORS. [PINAKI CHANDRA GHOSE, J]

Singh and pushed him on the ground in/near the drain and        A
Shyamu shot at him from behind.

       5. The PW2 Ankit was 7 years old when the incident
happened and 9 years old when his statement was recorded.
He testified that he was sitting 11-12 feet away from where his B
grandfather and father were irrigating the field. He saw that
Shyamu shot his father at the back of his head and before
Shyamu shot, Balbir, Karua anc! Vinod pushed his father in
the drain. Thereafter his grandfather carrying him in his lap,
ran away from there.                                            C

       6. PW-3 Dr. S.K. Seth had conducted the autopsy of
the deceased and found two wounds on head. The bullet
entry wound on the front head near the nose while exit wound
on the back side of the head. The parietal and occipital D
bone of both sides of the head were fractured. He told the
cause of death was coma resulting from ante mortem injuries.

       7. The Session Court after going through the evidence
concluded the guilt of all the accused and convicted Balbir,    E
Karua and Vinod under Section 302/34 of IPC and Shyamu
under Section 302 of !PC, and sentenced all of them to
imprisonment for life, along with a fine of Rs.3000/- and in
default of payment of fine, they shall have to undergo simple
imprisonment for a period of seven months. Shyamu was           F
further sentenced to rigorous imprisonment for three years
under Section 25 of Arms Act.

        8. The High Court in appeal dealt extensively with
the question of interested witness and child witness. After a G
long discussion on both the points, the High Court found that
the testimony of the PW1 Complainant as well as PW2Ankit
is reliable. The High court found that there were questions
asked to PW2 to test his understanding and only thereafter H
42         SUPREME COURT REPORTS                 [2015] 4 S.C.R.


A examination pertaining to the case were asked. The
  statement of PW2 completely corroborated the case of the
  prosecution. 1-:owever, after accepting the evidence of the
  prosecution, the High Court found that there was no case
  made out as against the present three respondent accused
B persons under S. 34 as there was no common intention. The
  High Court found that there was no prior meeting of minds or
  premeditation to commit the offence and that the incident
  was a sudden scuffle. These three accused persons did not
C share the intention to kill the deceased. Therefore, the High
  Court acquitted the three accused-respondents.

            9. The learned counsel for the complainant-Appellant
     has sought conviction of the present respondents. The main
     contention is that when the case of prosecution has been
0
     believed and relied upon by the High Court and on that basis
     the main accused Shyamu is convicted, the present three
     respondents cannot be acquitted.

          10. The learned counsel for the Respondents has
E tried to point out certain contradictions in the facts of the
  prosecution. However, in view of the dismissal of appeal of
  Shyamu by this Court, the facts in this case have become
  final and cannot be challenged anymore. If we accept any
F contention with respect to those facts, it would upset the
  finding of conviction in Shyamu's appeal to this Court.
  Therefore, the only question before us is whether, in the given
  facts and circumstances the case, the role attributed to the
  present three Accused-respondents lead to their implication
G under Section 34 of IPC.

            11. Limiting ourselves to the above question, we find
  that there is indeed enough material to infer the common
  and shared intention of the present accused-respondents
H with that of Shyamu. Although, the learned counsel for the
 RANBEER SINGH (DEAD) BY L. R. v. STATE OF U. P.                  43
      & ORS. [PINAKI CHANDRA GHOSE, J]

respondents has argued that they had not thrown the               A
deceased down to the drain with intention of killing him but
merely assaulting him. According to him, the shooting by
Shyamu was an independent act. However, we find that firstly,
there was no justifiable reason for the 4 accused persons to
go 100-150 yards inside the field of the complainant. Second,     B
the fact that they carried a weapon being 315 bore country-
made pistol with them clearly shows that they had all the
wrong intentions. Nowhere in the case of defence has this
come out that the present three accused-respondents were          C
not aware of the fact that Shyamu carried the weapon. Also,
the exhortation made by the accused persons against the
complainant and the deceased mentioned about killing them.
Having made such an exhortation, they threw the deceased
on the ground. It goes on to show that they all shared a          D
common intention and worked in tandem. Balbir Singh is the
father of other three accused persons; he could have asked
Shyamu to stop short of shooting, but he did not do so. We
find, in the light of these circumstances, that the High Court
erred in acquitting the present accused-respondents. We           E
are satisfied that the view taken by the High Court is not even
a possible view and therefore calls for interference in this
appeal.

        12. On the basis of above discussion, we allow the        F
present appeal. The impugned judgment of the High Court is
set aside and the judgment and order passed by the Sessions
Court is restored.

        13. Learned counsel for the accused persons -             G
respondents herein has submitted that there is a marriage in
the house of the accused persons on 22nd April, 2015 and
prayed that the accused may not be arrested till the marriage
is solemnized. In view of this submission, we grant six weeks'
                                                                  H
44          SUPREME COURT REPORTS               [2015] 4 S.C.R.


A    time to the three accused-respondents to surrender, failing
     which the Court concerned shall take appropriate steps to
     take them into custody.

     Kalpana K. Tripathy                           Appeal allowed.
B